OBSERVATIONS. (Hansard, 28 July 1871)

§ MR. CAVENDISH BENTINCK
said, he had placed a Question on the Paper which involved a point most important to the subjects of this realm. It related to the seizure of the Tornado by the Spanish Government some years ago. The circumstances of the case were well stated in the judgment of Vice Chancellor Malins pronounced on Thursday last, and which he should have read to the House but for its length. ["Hear, hear!"] He thought it rather extraordinary that an Irish Law Officer of the Crown should venture to sneer at the decision of an English Judge.

§ THE SOLICITOR GENERAL FOR IRELAND (Mr. DOWSE)
I rise to Order. There is really no foundation for the remark of the hon. Gentleman. I only said "Hear, hear!" If he wishes me not to say "Hoar, hear!" I will not do so again.

§ MR. CAVENDISH BENTINCK
The hon. and learned Gentleman said "Hear, hoar" in an Irish tone. He would state the circumstances of this case as shortly as he could. In 1866 the British ship Tornado was seized by the Spanish Government, and the crow having been imprisoned and robbed of their effects, they made a claim against that Government, through the medium of the Foreign Office. Mr. Forbes Campbell was employed to defend their rights. They executed an irrevocable power of attorney to Mr. Forbes Campbell to receive any sum that might be recovered from the Spanish Government. That document was held by the Vice Chancellor to be an equitable assignment. After lengthened negotiations, in the course of last year the Spanish Government paid over to the British Government the sum of 431 £1,500 as compensation for the wrongs which these individuals had suffered. Mr. Forbes Campbell was recognized after the execution of the power of attorney as the legal agent of these individuals by the Foreign Office, as he could himself testify. He took the opinion of the Attorney General, and paid a large fee for it, and the opinion of the Attorney General in favour of the rights of the claimants would be found in the Parliamentary Papers. The sum of £1,500 was accepted by Mr. Forbes Campbell on behalf of the crew in satisfaction of all claims and demands on the Spanish Government. When, in April last, the money was paid the Foreign Office declined to distribute it, and handed it over to the Board of Trade. He had consulted his right hon. Friend on the subject, who stated that he could not himself deal with the matter, and must abide by such legal official advice as he might receive. All of a sudden he was informed by Mr. Forbes Campbell, who held this equitable assignment, and was entitled to one-third of the money for his commission, that he had been ignored by the Board of Trade. He attended with Mr. Forbes Campbell at the Board of Trade, saw the private secretary of his right hon. Friend, and placed before him the whole circumstances of the case, specially requesting that Mr. Forbes Campbell might be communicated with before there was a division of the money. Unfortunately, though there was virtually an undertaking to that effect, that course was not followed, and the Board of Trade proceeded to distribute the money. Mr. Forbes Campbell again consulted him. He told him there was no alternative but to go to law, file a bill, and move for an injunction against the Board of Trade distributing the money. Mr. Forbes Campbell acted on his advice, moved for and obtained an interim injunction from Vice Chancellor Malins. The following morning, counsel for the Crown applied to the Lord Chancellor to dissolve the injunction, which his Lordship refused with costs, and an expenditure of £200 was thereby uselessly incurred by the Government. Last Thursday week a Motion was made in due form for an injunction to restrain the Board of Trade from proceeding any further in the division of the money; the application was made by Mr. Glasse; it was opposed on behalf of the Board of Trade; and, 432 without calling on Mr. Glasse for a reply, Vice Chancellor Malins decided against the Board of Trade. In the course of his judgment, he said— The correspondence on the part of the crew has been carried on between Mr. Campbell and the Government, and at a very early stage of the proceedings the Board of Trade had notice that Mr. Campbell was acting under a power of attorney from the crew. … . Therefore, the officers of the Board of Trade were bound to know, and I very much regret that this Motion should have been caused by a total neglect on their part, of the existence of this assignment, and anybody who had knowledge of its existence, and yet acted as if it did not exist, must have entirely overlooked the powers of the Court of Chancery…… That they did have notice of the assignment here is clearly beyond doubt. … . I consider the whole proceeding a most unjustifiable one. … . I am surprised that the Government should have allowed the time of the Court to be occupied ten minutes with the case. If the Government have distributed this money after notice, in defiance of the notice of Mr. Campbell, they have done that which is exceedingly wrong. … . If in defiance of the rights of which they had notice—if they have paid over the money in derogation of those lights, if Mr. Campbell shall hereafter establish them, the Government have acted in a manner which renders them liable to pay the money over again. I cannot conceive a more unjustiable act. … . Mr. Campbell, for the purposes of his motion, has distinctly shown that he has an interest to the extent of one-third of the sum that has been allotted to each of the persons to whom the Government have made allotment. Is it right that, in defiance of Mr. Campbell's rights, the Government are to invite these men to come and take the whole fund? . … I can only repeat, and repeat most emphatically, that if the Government have paid over any money since the notice of Mr. Campbell's rights, they have acted in a manner which I very greatly regret, which is wholly without justification, and I hope Mr. Campbell will find the means of making them pay the money over again if he establishes his right to it at the hearing of the cause. I therefore limit my injunction to their parting with one-third of the money appropriated to those persons who have executed the power of attorney or any other instrument in favour of Mr. Campbell. The Attorney General knew from the first that Mr. Forbes Campbell had been recognized by the Foreign Office as the agent of the crew. The Parliamentary Papers in the hands of Members proved Mr. Campbell's legal position. That position had never been doubted by the Foreign Secretaries in succession, as he (Mr. Cavendish Bentinck) could testify; and now that view was fully and absolutely confirmed by the Vice Chancellor. His object in bringing the matter forward, now that the opinion of the Court 433 was known, was to prevent Mr. Forbes Campbell being oppressed by the delay and cost of useless litigation with the Government, when the Government were in the wrong and would ultimately have to pay; and, if the Government thought their dignity would be compromised by stopping the proceedings and paying the claims of Mr. Forbes Campbell, which it was clearly their duty to do, he would suggest that the matter should be referred to the arbitration of the leaders on either side—Mr. Glasse and Mr. Cotton.

§ MR. WHALLEY
rose to Order. He submitted that it was improper for an hon. Member to enter into the details of a case which was under litigation.

§ MR. SPEAKER
said, the question whether a matter which was under the consideration of the Court of Chancery was a proper subject to be discussed in the House had often been raised, and the House had always declined to enter upon questions which were sub judice. He was not aware of the exact position of this case, which the Law Officer would perhaps explain.

§ MR. CAVENDISH BENTINCK
said, he had carefully guarded himself against this objection, and he had cited only a judgment which was public property, and which had, to all intents and purposes, decided the case; and, having done that, all that he desired to do further was to ask the President of the Board of Trade, Whether, under the circumstances, he will not at once stop the proceedings in the cause, and pay to the plaintiff the amount to which he is entitled, and also all the costs of the suit?

THE ATTORNEY GENERAL
said, he had been many years in that House, but had never heard so irregular and improper an appeal made. A counsel practising in the Court of Chancery, professing to be cognizant of its proceedings, and having advised a person to file a bill against his right hon. Friend (Mr. Chichester Fortescue), and an interim injunction having been granted almost as a matter of course, and no answer having been put in, while the case was still pending the counsel who had advised the institution of those proceedings now came to that House.

§ MR. CAVENDISH BENTINCK
rose to explain, ["Order!"]

§ MR. SPEAKER
said, that the hon. and learned Member was not entitled to interrupt the hon. and learned Member 434 in possession of the House without that hon. and learned Member's consent.

THE ATTORNEY GENERAL
continued: The hon. and learned Member had said that he advised Mr. Forbes Campbell to institute the suit now pending, and yet he made a long speech in the House of Commons, and endeavoured to obtain the opinion of that House on a question still sub judice. In his recollection nothing so irregular had ever been done before by a barrister in that House. He would not follow the hon. and learned Member's example by now discussing the case, for that House was not a Court of Appeal from the Court of Chancery, or from any other tribunal. Indeed, he did not know how the proper Business of the House could ever be done if every barrister in it who had advised a client to institute a suit, and who was dissatisfied with the course of the proceedings, was to come and tell his grievances to that House. [Mr. CAVENDISH BENTINCK said he had done nothing of the sort.] A Bill had been filed in Chancery by the advice of the hon. and learned Member—and bad advice it was in his opinion—against the President of the Board of Trade, to obtain payment to Mr. Forbes Campbell, the owner of the Tornado, which was condemned as a Chilian privateer, of the sum of £1,500 paid by the Spanish Government to be distributed by Her Majesty's Government among the sufferers—that was to say, the innocent crew, who had been induced to serve on board of that vessel without knowing what she was. He filed a bill praying that the whole of that money, or a large portion of it, might be paid to him, and the Vice Chancellor granted an injunction to a very limited extent—namely, there being 53 persons concerned, and he having originally represented that he was entitled to obtain the shares of all of them, some 11 of them, according to his own showing at present, had entered into some agreement that he was to have one-third. The Vice Chancellor had granted an injunction restraining his right hon. Friend from parting with that one-third of the money of those 11 persons. He had no wish to enter into the merits of the case, and had only to say that whatever might be the ultimate decision of the Court, it would of course be acquiesced in by the Government.

§ MR. CAVENDISH BENTINCK
said, he regretted that the Attorney General had not allowed him to explain. The hon. and learned Gentleman had attributed to him that he was counsel for the plaintiff, and had acted for and advised, him professionally. There was not a shadow of foundation for such an accusation, and it was most improper in every respect. He (Mr. Cavendish Bentinck) had only advised the claimant because he was intrusted with the conduct of the Tornado case in Parliament.

§ MR. CHICHESTER FORTESCUE
said, in answer to the hon. Member for Leith (Mr. Macfie), he was unable to give him his Return precisely as it stood on the Paper, but would endeavour to frame a Return which would give him the information he required. In proposing to substitute a kind of Commercial Council for the present Department of Trade, his hon. Friend rather fell into an anachronism, because the consultative functions of the Board of Trade, from the nature of things and the progress of events, had become comparatively small, whereas its administrative functions, from the same causes, had very largely increased, and by the present staff were very efficiently discharged. The amount of work which fell upon the Department was by no means trifling. The administrative and consultative functions of the Board of Trade were often mistaken and confused by the public, who expected the Department to act in matters over which it had no direct control, and which it could only bring to the notice of other Departments. A case of that kind occurred the other day in regard to the importation into London of adulterated and fictitious tea—a matter in which the President of the Board of Trade would naturally take great interest and endeavour to get remedied, though he had no power to give orders to the officers of Customs. A Commercial Council would not, however, forward nine-tenths of the business now brought before the Board; and his hon. Friend's reforming intentions in that direction were not suited to the present time.